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Home > Family > Italy > 2010-03-01 - Court of cassation, n. 4868

2010-03-01 - Court of cassation, n. 4868

Family · Italy · Adoption · Kafala

No visa issuing for a foreign minor entrusted outside international adoption, that is through a kafala

Key facts of the case – An Italian citizen of Moroccan origin requested an entry visa for a foreign minor residing in Morocco that had been entrusted to his care by a Moroccan court, based on the legal institute of kafala.
The Italian Consulate of Casablanca refused the entry visa to the Moroccan child, so the Italian citizen to whom the minor was entrusted (so-called Kafil), appealed against the Ministry of Foreign Affairs.
According to the Court of Appeal of Perugia, since in Italy kafala has been assimilated, under certain guarantees, to familial fostering for the purposes of family reunification procedures, according to the Consolidated Act on Immigration (Article 29, para. 2, Act No 286/98, equality of minors in foster care to natural children for the purposes of family reunification; see Court of cassation, case No. 7472 of 20 March 2008), this procedure and the subsequent issuing of visa for family reunification could be activated even when the person to whom the minor has been entrusted (Kafil) by the Moroccan court is an Italian or EU citizen and not just in case the applicant is a non-EU citizen.

Main reasoning of the case – The Supreme Court, overturning the ruling adopted by both the Court of First Instance (Court of Spoleto, decision of 07.06.2008) and the trial court (Court of Appeal of Perugia, decree 20.12.2008), argues that the entry and residence of a non-EU family member of an Italian or European citizen, resident in Italy, are governed solely by the provisions of Legislative Decree No. 30/2007, transposing the European Directive No. 2004/38.
Therefore, among the list of the familiars laid down in Articles 2 and 3 of Legislative Decree No. 30/2007, it’s certainly possible to include the minor adopted by an Italian or EU citizen, who enters in Italy by acquiring the status of a child in foster care, under the provisions of the Title III of Law No 184/1983, as amended by Law No 476/1998, implementing the Hague Convention of 19.05.1993 on international adoption.
But, according to the a consolidated orientation of Supreme Court (Case No. 21395/2005, No. 7472/2008 and No. 18174/2008), the minors entrusted outside of a process of international adoption (a category that includes also those who are entrusted according to the institute of kafala), cannot be considered family members under the Legislative Decree 30/2007.
The Supreme Court did not confirm the argument of the Court of Appeal of Perugia, that invoked the principle of the most favourable clause - laid down by the article 28 of the Decree Act no. 286/98 - to apply the provisions of the Consolidated Law on Immigration on family reunification to family members of Italian or EU citizens if more favourable than those provided by the rules of transposition of European directives on freedom of movement and residence of EU citizens and their families.
The Supreme Court holds that the scope of application of the more favourable treatment clause has to be interpreted narrowly and applied only to the field of procedures, i.e. the modalities of reunification.
There is no unreasonable differential treatment based on the fact that a non-EU citizen can take advantage of family reunification with a minor in his care through the institute of kafala, while an Italian or EU citizen cannot obtain the same treatment. In the second case, the Italian citizen can ensure the inclusion of the child in his family through the process of international adoption, as provided by Law No 184/1983 and subsequent amendments.
The Supreme Court therefore upheld the appeal of the Italian Ministry of Foreign Affairs and confirmed the refusal of entry visa decided by the Italian Consulate in Casablanca.

Comment – Kafala is a measure for the protection of abandoned children, used in many countries whose judicial system is fully or partly based on Islamic law. It is generally defined as a voluntary commitment to take charge of the needs, upbringing and protection of a minor child. In certain cases, kafala is combined with tutorship. As kafala does not create a legal parent-child relationship between the child who is taken in charge and the person who takes care of him, it cannot be considered adoption. On the other hand, most of the countries whose jurisdiction includes kafala prohibit the adoption.

See the decision (in Italian): 2010-03-01 – Court of cassation, n. 4868.